On March 2, 2018, associate attorney Carl Taber of DGC’s San Francisco office obtained a Joint Findings and Award in which the WCJ agreed that the AME had not effectively rebutted the PD schedule, currently resulting in approximately $46,000.00 in PD savings for the defendant, a self-insured public transportation provider. The applicant, a long-time bus driver for the employer, sustained a specific injury to his shoulders helping a wheelchair-bound passenger onto the bus.

The case went to trial on the issue of permanent disability calculations under Almaraz Guzman II vs. the AMA Guides, 5th Edition. The AME had calculated WPI for both shoulders under the range of motion method as indicated in the Guides, but also provided what he claimed was a “more accurate” Almaraz Guzman calculation of shoulder injury based on grip strength measurements. Although grip strength measurements are not favored under the AMA Guides, a growing wave of med-legal evaluators have been utilizing them as part of an Almaraz Guzman analysis to provide higher ratings than those contemplated by the presumptively correct PD schedule, and many judges have deferred to an AME’s judgement on WPI calculations.

Mr. Taber successfully argued that the AME’s opinion as to the grip strength impairment was not substantial medical evidence due to the AME’s conclusory language, the lack of atrophy, the clear omission of manual muscle testing, and the fact that reliance on grip strength testing is contraindicated by the AMA Guides themselves. In summation, the WCJ found it “…implausible that applicant would have been able to continue driving a bus…up to 60 hours per week for nearly two years as of the date of this trial in the presence of such substantial loss of strength.”

Currently on recon, this case may provide a needed turning point for employers and claims administrators as defendants, and should be followed closely.

Click below to read redacted Joint Findings and Award and Opinion on Decision; Applicant’s Petition for Reconsideration; Defendant’s Answer to Petition for Reconsideration; and the WCAB Judge’s Report and Recommendation on Petition for Reconsideration.

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